In re Eric S.

In re Eric S. ^[1]

No. W10CP16017113A

Superior Court of Connecticut, Judicial District of Windham, Willimantic, Juvenile Matters

April 5, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ^[2]

Francis J. Foley, Judge Trial Referee.

On February 5, 2016, Joette Katz, as she is the Commissioner of the Department of Children and Families, (" DCF") filed a neglect petition on behalf of Eric S. the child of Miranda S.J. and Ryan S. alleging neglect and abuse of Eric through serious unexplained physical injuries. The department also filed an application for order of temporary custody. The child was removed from the parental care by virtue of a 96 hour hold by the department on February 3, 2016. The Order of Temporary Custody was granted by the court (Spellman, J.) The petitions alleged both neglect and abuse in that the child had serious physical injuries at variance with the mother's explanations for the injuries.

Subsequently on April 18, 2016, the department filed a petition pursuant to § 17a-112 for the termination of the parents rights. The Department alleges the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse the care guidance or control necessary for the child's physical, educational moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights. The two cases were consolidated for hearing before this court for trial commencing on February 3, 2017, exactly one year from the date the child entered DCF care. The case will be considered as a coterminus petition (Practice Book § 35a-3). The trial was heard over three full days of trial on February 3, March 9, and concluding on March 24, 2017.^[3]

Procedure

On February 3, 2016, a two year old child, Eric, was transferred from W.W. Backus Hospital to Hasbro Hospital in Providence Rhode Island with injuries highly suspicions of child abuse. After a DCF investigator learned more of the serious nature of the injuries, a 96 hour hold was placed on the child as a result of the multiple unexplained injuries at various stages of healing.

On February 5, 2016, DCF filed a motion for Order of Temporary Custody (OTC) with this court. On the same date, the department conducted a Considered Removal Team (CRT) meeting with as many relatives and friends of the family as could be immediately determined and located. That meeting determined the names of approximately ten family members and five other friends who might be considered for immediate placement of the child.

For reasons later explained, none of those immediately identified could be licensed for foster care or they declined to be considered. The licensing investigation is conducted by the Foster and Adoptive Services Unit (FASU). The maternal grandmother (MGM) then identified a very close family friend to be a placement for Eric. While the paternal relatives have now adopted a slightly different narrative of events, the court finds that both parents and the grandparents all agreed to this placement. The child was placed with Terry A. on February 11, 2016.

On May 12, 2016, the PGM filed a motion to intervene for custody. The motion was scheduled for hearing on August 10, 2016, but the PGM did not proceed with her motion as she was no longer interested in custody at that time. She reported to the court that " Eric was thriving and doing well where he is and she does not want to disturb the placement." (Court Memorandum, 8/10/16) Her motion was marked off.

On August 24, 2016, the PGM filed a motion to intervene in the neglect/TPR cases. The court granted the petitioner's motion to consolidate the neglect and termination petition. (Spellman, J.) Atty. for PGM reported that his client now wished to be considered as a placement resource and her attorney reported that a request for ICPC study would be made on behalf of the sister of the PGM, Kim A. This is the first formal mention of her name. The MGM was also in court and renewed her request for an ICPC study for herself in Rhode Island. The ICPC study was ordered but not as an expedited study.

On August 31, 2016, the petitioner reported that the ICPC paperwork for MGM had been completed.

On September 21, 2016, the father, Ryan S., filed a motion to request an interstate compact study to determine the suitability of Kimberly A., the paternal great aunt (herein after called PGA) of the child and her husband, both of Vermont, as proposed guardians of Eric.

On October 5, 2016, the court granted the motion for Interstate Compact on the Placement of Children (ICPC). This one page request form was inefficiently processed by DCF and not sent to Vermont until November 14, 2016. (PGA Ex 1B).^[4]

Also on October 5, 2016, Kimberly A. (PGA) moved to intervene to seek guardianship of the child.

On November 10, 2016, PGA filed a motion to transfer the child's guardianship to herself and to vacate the order of temporary custody.

On November 10, 2016, the court following a contested hearing granted the motions to intervene filed by the PGM and her sister, the PGA, " for dispositional purposes only." (Spellman, J.)

On January 12, 2017, the petitioner filed a motion to amend the termination petition to allege abandonment as an additional ground claiming that both the respondents had not visited the child and had abandoned the child. The motion was granted by this court without objection on February 3, 2016, the first day of the trial.

On January 30, 2017, the PGA received approval of a foster care license from the State of Vermont. DCF in Connecticut received the ICPC study which approved the paternal great aunt and her husband for placement of Eric.

On January 31, 2017, the PGA filed a motion to transfer guardianship to her and a motion for out of state placement of the child.

On February 3, 2017, the court commenced the trial. There were seventeen people present, excluding court staff. They included the father, MGM, PGM, PGA and her husband, the foster mother, lawyers for all the aforementioned, two uncles and two DCF social workers. The respondent mother, Miranda, failed to appear but her attorney was present throughout the trial. The child was represented by counsel who participated in the trial and was present throughout the proceedings as well. The court announced the In re Yasiel, 317 Conn. 773, 120 A.3d 1188, (2015) advisement of rights to all present.

Neither parent has claimed federally recognized Indian Tribal affiliation. The court is aware of no other proceedings pending in any other court regarding the custody of this child. This court has jurisdiction.

At the commencement of the second day of the trial on March 9, 2017, the father presented to the court a properly executed form consenting to the termination of his parental rights. Having canvassed the father, this court found that he had been represented by competent counsel who was present with him when he executed the consent form. The court further found that the consent had been knowingly and voluntarily made with a full understanding of the legal consequences of his action, that the father understood that his actions permitted the child to be adopted. The consent of the father was accepted.

The Department of Child and Families (DCF) through counsel moved to amend the petition to withdraw the non-consensual grounds as to the father and to change the grounds to consent § 17a-112(i). Without objection, the motion was granted. The consenting father and his lawyer remained present throughout the three day trial.

The non-appearing respondent, mother, Miranda, called her lawyer on the phone before the second day of court to announce she wished to have the trial continued. Her attorney who was present in court requested a continuance. There were multiple witnesses, lawyers, and parties ready to proceed including the paternal great aunt and her husband from Vermont. As the mother had not appeared for the first day of hearings and had an inadequate excuse for her failure to attend, her request for continuance was denied. She did not seek a continuance for the third day of trial and did not appear for trial but her lawyer was present throughout the proceedings.

On the first day of trial the court received Exhibits A-Q as full exhibits as well as various other exhibits from the respondents and intervenors. Also on the first day of trial the court heard from Dr. Amy Goldberg, a pediatrician with a sub-specialty in child abuse. This sub-specialty is recognized by the American Board of Pediatrics. Dr. Goldberg was qualified as an expert witness. (Curriculum Vitae, Exhibit F.) The court also heard from two social workers. On the second day of trial the court heard principally from the social worker supervisor. The court also heard from the PGM in furtherance of her bid for guardianship. The third day of trial was principally dedicated to the witnesses called by the PGA.

The trial was scheduled to conclude on Friday, March 10th, but due to weather forecasts of substantial snow, the trial date was continued again to Friday March 24, 2017. On the third day of trial two social workers were recalled, the PGA and her husband each testified, the MGM testified and the approved, fictive kin, licensed pre-adoptive foster mother testified.^[5] In all, nine persons testified, some twice.

The court has reviewed the various Exhibits A-Q and the respondents and intervenors exhibits. The court has reviewed and consider the memoranda of law submitted by counsel. " Although a judge [charged with...